How Judges Think - Richard A. Posner

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the complete review - law

How Judges Think

by
Richard A. Posner

general information | review summaries | our review | links | about the author

Title:	How Judges Think
Author:	Richard A. Posner
Genre:	Non-fiction
Written:	2008
Length:	377 pages
Availability:	How Judges Think - US
	How Judges Think - UK
	How Judges Think - Canada
	How Judges Think - India

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Our Assessment:

B : fairly good overview and presentation, if in part a bit cobbled together

See our review for fuller assessment.

Review Summaries
Source	Rating	Date	Reviewer
TLS	.	20/6/2008	Lawrence R. Douglas

From the Reviews:

"(T)his most recent book, How Judges Think, is not, alas, among his strongest. (...) Indeed, in a number of instances, in particular when he trains his critical eye on recent decisions by the Supreme Court, Posner appears to abandon both his broad understanding of the political and his defence of pragmatics. (...) That Richard Posner often contradicts his own argument might be dismissed as one of the idiosyncratic lapses that typically plague books cobbled together, as this one was, from previously published articles, essays and book reviews. Or maybe these lapses remind us of the tenacity of the legalist mindset -- try as we might to psychoanalyse, deconstruct, or simply disparage it, it continues to prove awfully difficult to resist and avoid. " - Lawrence R. Douglas, Times Literary Supplement

Please note that these ratings solely represent the complete review's biased interpretation and subjective opinion of the actual reviews and do not claim to accurately reflect or represent the views of the reviewers. Similarly the illustrative quotes chosen here are merely those the complete review subjectively believes represent the tenor and judgment of the review as a whole. We acknowledge (and remind and warn you) that they may, in fact, be entirely unrepresentative of the actual reviews by any other measure.

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The complete review's Review:

As Richard Posner notes in his Introduction, there's surprisingly little information and literature about (American) judicial behaviour -- how judges think, what influences their decisions, and how they reach their decisions. While there is some discussion of how decisions are reached, especially at the Supreme Court, most judicial behaviour still takes place very much out of sight of the public -- and, as he notes, even most judges:

are also reticent about talking about judging, especially talking frankly about it, whether to their colleagues or to a larger professional audience.

       In this book Posner is primarily concerned with judging at the federal appellate level, including the Supreme Court, where decisions are based most obviously specifically on issues of the law rather than just the facts of a case (and where in most cases a lower court has, in fact, already decided the case one way or another). Posner is himself a Court of Appeals judge and hence also writes from personal experience (though he emphasises that: "the mode of the book is scholarly rather than confessional") -- and one can't help but notice that the self-styled pragmatist Posner finds that the best explanation of judicial behaviour is a form of pragmatism. He does allow for a lot more than just that, however, and over the course of the book offers a good overview of the various possible explanations of judicial behaviour and what he believes to be the most significant influences on judges' decision-making.
       Posner begins with nine theories of judicial behaviour: the attitudinal, strategic, sociological, psychological, economic, organizational, pragmatic, phenomenological, and legalist theories. Not surprisingly, each has at least some weaknesses, but he also finds them (more and less) useful in describing judicial behaviour -- especially as he then moves on and considers, for example, 'the judge as labor-market participant' and then 'the judge as occasional legislator' (or, in fact, not just occasional ...).
       Posner considers everything from the usual labour-incentives (opportunities for promotion are limited at this level, the salary is good but not great compared to what lawyers can rake in -- but raising salaries might make judgeships even more patronage-posts, lowering the quality of the applicant pool --, job security and benefits are excellent (and an incentive to stay on the job)) to outside influences. He notes, for example, that Supreme Court justices are more concerned with public opinion than lower court judges: for one, the buck stops with them (while lower courts have the luxury of going out on limbs with their decisions, knowing that the Supreme Court will have to make the final decision), and for another the Supreme Court (and its decisions) are simply much more visible to the public. Of course, they're supposed to ignore public opinion, but Posner doesn't believe they can.
       Posner also devotes a chapter tackling (head-on) Supreme Court Justice Stephen Breyer's book, Active Liberty, and in the final chapter, on 'Judicial cosmopolitanism' inveighs against the citing of foreign legal decisions as any sort of authority. The latter, in particular, while a valid argument to make, does feel a bit tacked-on to the book as a whole, a sort of obvious aside that perhaps doesn't need so much coverage (but Posner seems to have been very eager to get this particular point across as well here).
       The bulk of the book, however, does deal with the different explanations of judicial behaviour -- whereby it should be noted that Posner both tries to explain it, as well as to suggest what the best way for judges to reach their decisions might be (two very, very different things). So, for example, he takes on the various forms of legalism, arguing both that the supposed strict legalists really aren't (and, for the most part, can't be) what they claim to be and that, in any case, strict legalism isn't the best way to go. Instead, of course, he argues for a form of pragmatism -- careful to note the possible shortcomings there too (and so noting that: "Sensible pragmatic judges are to be distinguished from shortsighted pragmatists", for example).
       How Judges Think is a wide-ranging survey -- in some respects too wide, as parts of it have the feel of having been stuck in simply (almost) because Posner had the material available. But he does look at the question at the centre of the book from many, many angles, and though occasionally it can seem he's looking too hard at rather peripheral concerns, he does also deal with what appear to be all the main ones, offering a better idea of 'how judges think' (and offering explanations of why) than is otherwise available. Well-documented, using a variety of often very recent cases (as well as citations as far-ranging as Hermione Lee's Edith Wharton-biography and Sports Illustrated), the text is also reasonably penetrable even for the layman -- though there are times Posner does get carried away.
       This isn't a casual insider-account of judging in America, but for anyone concerned with the legal, philosophical, economic, and sociological influences on how judges think it's certainly of interest.

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Links:

How Judges Think:

Harvard University Press publicity page

Reviews:

Richard A. Posner:

The complete review's Richard Posner page
Faculty page at the University of Chicago

Other books by Richard A. Posner under review:

Books about Richard Posner under review:

William Domnarski's biography, Richard Posner

Other books of interest under review:

Books on Legal subjects at the complete review

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About the Author:

Richard A. Posner is Chief Judge, U.S. Court of Appeals for the Seventh Circuit. He is also a senior lecturer at the University of Chicago Law School, and the author of many books.

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